Can Grandparents File For Custody?

Both my 14- and 7-year-old grandsons have been abused repeatedly by their parents. Do I, as their grandmother who has been their only source of stability, have the right to obtain custody and what is the quickest way to have the youngest boy placed with me?

Answer:

I am only licensed to practice law in Virginia so I am only able to provide you some general observations on this issue based on the jurisdiction where I practice.

In Virginia, the courts allow for third parties to file for custody of children. The statutory basis of this can be found in Virginia Code Section 20-124.2.B., which states “The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest.”

The process to gain custody mirrors that of what the natural parents must do. First, the party seeking custody must file a motion in the appropriate county court asking for a change in child custody, and have both parents served by sheriff. The court will set a hearing date and will decide who the most appropriate custodian should be.

Virginia Divorce Attorney Charles Hatley

As stated above, the third party must show by clear and convincing evidence that the best interest of the child would be served by the change in custody. This is a higher standard than a parent must show; but is more easily achieved if one of the child’s parents consents to the third party having custody.

If it is you intention to quickly gain custody of the minor child, you can simply file an emergency motion for child custody in the court of the county where the child resides.

To prove an emergency, you will have to show that the child is in physical danger and must be removed from the situation. Your best bet would be to illicit the testimony of the older child to show the abuse and the school records to show the effect of the abuse.

If the court grants the emergency motion, a hearing for child custody will automatically bet set by the court. If the court does not grant the emergency motion, you can still file for a change in custody, the emergency motion will not prejudice your case.

Remember, I am unable to provide you with anything more than tips on these matters, so please contact an attorney in your jurisdiction to obtain specific advice as to the laws of your state and how they impact your case.

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